ACIT, Cuttack V. Gangadhar Jena, Paradeep

ITA 357/CTK/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7985 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 13-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHESHADEV DAS
• Keywords: Depreciation

Judgement Text

P A G E 1 | 3 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND SHRI L. P. SAHU, ACCOUNTANT MEMBER ITA NO. 357 /CTK/201 5 ASSESSMENT YEA R: 2011 - 2012 ACIT, CIRCLE 1(1), CUTTACK VS. SRI GANGADHAR JENA, HIG - 23, GOURAV VIHAR, MADHUBAN, PARADEEP PAN/GIR NO. ABOPJ 8514 D (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI SHESHADEV DAS, AR REVENUE BY : SHRI SUBHENDU DUTTA, DR DATE OF HEARING : 18 / 0 7 / 201 9 DATE OF PRONOUNCEMENT : 18 / 0 7 / 201 9 O R D E R PER C.M.GAR, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) , CUTTACK DATED 29.5.2015 FOR THE ASSESSMENT YEAR 201 1 - 12 . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN GIVING DIRECTION TO THE AO TO ESTIMATE PROFIT @8% OF THE GROSS CONTRACT RECEIPTS AFTER DEDUCTING DEPRECIATION FROM THE GROSS RECEI PTS AS CLAIMED BY THE ASSESSEE, AS AGAINST THE PROFIT ESTIMATED BY THE AO @10% AND ALLOWING DEPRECIATION THERE AFTER WHICH IS CONTRADICTORY TO THE EARLIER DECISION IN THE ASSESSEE'S OWN CASE FOR THE A/Y:2009 - 10 PASSED BY THE SAME ID.CIT(A) IN ITA NO.495/20 13 - 14 DATED 27.02.2015 WHEREIN THE ESTIMATION OF PROFIT MADE BY THE AO @8% OF GROSS CONTRACT RECEIPTS WITHOUT ANY DEPRECIATION WAS CONFIRMED. 2. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD.CU(A) WAS JUSTIFIED IN GIVING DIRECTION TO THE AO TO ESTIMATE PROFIT @5% ON THE SUB CONTRACT ITA NO.357/CTK/2015 ASSESSMENT YEAR: 2011 - 2012 P A G E 2 | 3 WORK AS AGAINST THE PROFIT ESTIMATED FROM SUB CONTRACT WORK BY THE AO @8%, WHICH IS CONTRADICTORY TO THE EARLIER DECISION PASSED IN THE ASSESSEE'S OWN CASE FOR THE A/Y:2009 - 10 PASSED BY THE SAME LD.CIT(A) IN IT A NO.495/2013 - 14 DATED 27.02.2015 WHEREIN THE ESTIMATION OF PROFIT MADE BY THE AO @6% FROM SUB - CONTRACT WORK WAS CONFIRMED. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, ID.CIT (A) ERRED IN NOT ENHANCING THE ESTIMATION OF PROFIT FROM THE TRANSPORT CONTRACT RECEIPTS FROM 4% TO 5% AS UPHELD IN THE EARLIER DECISION PASSED BY THE L D.CIT(A) FOR THE SAME ASSESSEE FOR A/Y:2009 - 10 REPORTED IN ITA NO.495/2013 - 14 DATED 27.2.2015. 3. AT THE OUTSET, BOTH THE PARTIES SUBMITTED THAT AGAINST THE ORDER OF THE CIT(A), CUTTACK DATED 29.5.2015 IN I.T.APPEAL NO.47/14 - 15, THE APPEAL WAS FILED BY THE ASSESSEE, WHICH WAS REGISTERED AS ITA NO.440/CTK/2015 AND THE REVENUE ALSO FILED APPEAL CHALLENGING THE RELIEF GRANTED BY THE CIT(A) BY THE SAID ORDER, WHICH WAS ALSO REGISTERED AS ITA NO.357/CTK/2015. IT SUBMITTE D THAT IN APPEAL FILED BY THE ASSESSEE, THE TRIBUNAL VIDE ORDER DATED 23.2.2016 RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO FRESH ASSESSMENT IN ACCORDANCE WITH THE LAW. IT WAS ALSO AGREED BY BOTH THE PARTIES TO THE FACTUAL POSITION THAT IN PURSUANCE TO THE TRIBUNAL ORDER DATED 23.2.2016, THE ASSESSING OFFICER HAS PASSED ASSESSMENT ORDER UNDER SECTION 143(3)/254 OF THE I.T.ACT, 1961 ON 29.12.2016, WHEREIN, THE ASSESSING OFFICER HAS MADE SIMILAR ADDITIONS WHICH WERE MADE IN THE ORIGINA L ASSESSMENT ORDER U/S.143(3) OF THE ACT DATED 21.3.2014. 4. IN VIEW OF ABOVE, LD D.R. SUBMITTED THAT IN THESE CIRCUMSTANCES, WHEN THE ASSESSING OFFICER HAS PASSED ASSESSMENT ORDER U/S.143(3) R.W.S. 254 OF THE ACT ON 29.12.2016 IN PURSUANCE WITH THE DIRECT ION OF THE TRIBUNAL ITA NO.357/CTK/2015 ASSESSMENT YEAR: 2011 - 2012 P A G E 3 | 3 BY MAKING IDENTICAL ADDITIONS, THEN, THIS APPEAL OF THE REVENUE HAS BECOME INFRUCTUOUS AND REVENUE MAY KINDLY BE PERMITTED TO WITHDRAW THE SAME. LD A.R. SUBMITTED THAT THE ASSESSEE HAS NO OBJECTION IF REVENUE WANTS TO WITHDRAW THE APPE AL. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON 18 / 0 7 /201 9 . SD/ - SD/ - (L. P. SAHU) ( CHANDRA MOHAN GARG ) ACCOUNTANT MEMBER J UDICIALMEMBER CUTTACK; DATED 18 / 0 7 /20 9 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK 1. THE APPELLANT : ACIT, CIRCLE 1(1), CUTTACK 2. THE RESPONDENT. SRI GANGADHAR JENA, HIG - 23, GOURAV VIHAR, MADHUBAN, PARADEEP 3. THE CIT(A) - CUTTACK 4. PR.CIT - CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//